Book & eBook

Nolo's Essential Guide to Divorce

Divorce Guidance You Can Count On

Nolo's Essential Guide to Divorce guides you through all stages of separation and divorce with practical wisdom and compassion. Make the process simpler and reduce your expenses with information that will help you:

16. Getting Help, Finding Information, and Looking Stuff Up

Appendix

Index

Sample Chapter

Chapter 1: Getting Oriented

Whether you’re thinking about getting a divorce or have already begun the process, you undoubtedly have a lot of questions. Will you have to hire a lawyer and go to court? What will happen to your house? Who will get custody of the children? How will you make ends meet?

On top of all these practical concerns, the end of a marriage is an intensely emotional time. No matter who makes the decision that it’s over, both spouses are likely to experience enormous grief over the loss of a relationship that started out full of love and hope. You probably feel disoriented and possibly somewhat lost. You need to take care of yourself, and one way to do that is by learning about the legal and practical issues you’re likely to face.

This chapter gives you an overview of the divorce process and answers common questions. It also defines some important words and concepts you’ll need to understand as you wade into this unfamiliar territory. Once you have this information, your divorce should be easier, smoother, less frightening, and less costly.

Taking the High Road

As you go through your divorce, time after time you’ll be faced with the same kind of choice: Give a little bit or stand firm on principle. Agree to send your kids for visitation early on a day your spouse is off work or hold to the visitation schedule as if any deviation would be fatal. Go with your spouse to a parent-teacher conference or insist on scheduling separate meetings. Offer an olive branch or fire off a scathing letter.

It may not seem true now, but the best thing you can do for yourself and your family is to take the high road as often as you can. That means trying to compromise. Consider the other person’s feelings. Do what’s best for your kids. Think about negotiating solutions that work for everyone, not just you. Whenever possible, don’t create or escalate conflict.

You don’t choose the high road just because it’s morally superior to pettiness and vindictiveness. Experienced divorce lawyers and family therapists will tell you that the angriest people end up hurting their own interests and dragging out the pain by their refusal to give an inch. No question, it is very difficult to make reasoned decisions when you’re in emotional turmoil. You may be very angry at your spouse; you may be deeply hurt by an affair or another betrayal; you probably feel that you can’t get away from the situation quickly enough. And if your spouse is abusive or otherwise impossible to work with, you may know from experience that efforts at compromise will probably be wasted. But in the vast majority of situations, a little compromise goes a long way—and if you do choose the high road, then when you look back on this time, you will feel good about the choices you made.

You’ll also feel good about having done right by your kids. The other thing that experts agree on is that although divorce is difficult and stressful for kids no matter what, the real harm comes from being subjected to conflict between parents. The longer that lasts, and the more severe it is, the worse it is for your children. If you truly want to shield your children from the pain of divorce, recognize that the more you take the high road with your spouse, the better job you’ll do.

RESOURCEHelp in communicating with your spouse.Difficult Conversations: How to Discuss What Matters Most, by Douglas Stone, Bruce Patton, and Sheila Heen (Penguin), has practical advice about how to prepare for difficult talks and communicate successfully about hard topics.

Separation or Divorce?

Separation simply means that you are living apart from your spouse. A separation is not a divorce. You’re still legally married until you get a judgment of divorce from a court. However, generally a separation does affect the financial responsibilities between you and your spouse before the divorce is final.

CAUTIONLook before you leave. In some states, moving away from your spouse can be grounds for a “fault” divorce, because if you initiated the separation and your spouse didn’t want it, your spouse can say that you abandoned the marriage. While the issue of fault is much less important than it used to be, in some states, it can affect property division or support. See “Fault and No-Fault Divorce,” below.

There are three kinds of separation. In most states, only one (legal separation) changes your legal status—but all three of them have the potential to affect your legal rights.

Types of Separation

Trial Separation

Living apart to decide whether to divorce. May or may not affect property rights, depending on length of separation, activities during separation, and on where you live.

Permanent Separation

Living apart with the intention to divorce. Property and income acquired, and debts incurred, after separation date are the separate property of the spouse who acquires them.

Legal Separation

Legal status different from being married and different from being divorced; includes distribution of property; spouses are not free to marry again.

Trial Separation

If you and your spouse need a break from the relationship, you may choose to live apart while you decide between divorce or reconciliation. While you’re separated, the same legal rules apply as when you are married, in terms of ownership of property. For example, money you earn and property you buy are likely to still be considered jointly owned by you and your spouse, depending on your state’s rules about property ownership. (See “Property, Custody, and Support,” below.)

Take your time deciding …

"I wish we had spent some time apart and thought about things for a while longer. I feel like we rushed into divorce even more than we rushed into marriage—once we started talking about it, it had a life of its own. Now we really miss each other. I don’t know whether we could have made it work but I would have liked to try counseling instead of just going in for the divorce.”

—Divorced military spouse

If you and your spouse are hoping to reconcile, it’s a good idea to write an informal agreement about some issues that will surely come up. For example, you will need to decide whether or not you will continue to share a joint bank account or credit cards and how you’ll budget your spending, which of you will stay in the family home, how expenses will be shared, and the like. If you have kids, you’ll need to decide how and when each of you will spend time with them. A sample separation agreement is shown below.

If you both decide there’s no going back, your trial separation turns into a permanent one. That’s discussed next.

Permanent Separation

When you live apart from your spouse without intending to reconcile but you are not divorced, you are considered permanently separated. In some states, living apart can change property rights between spouses—if you don’t intend to get back together, then assets and debts acquired during the separation belong only to the spouse who acquires them. Once you are permanently separated, you are no longer responsible for any debts that your spouse incurs. Similarly, you’re no longer entitled to any share of property or income that your spouse acquires or earns.

Because it can significantly affect how your property and money are divided, the date of permanent separation is sometimes hotly contested in a divorce. For example, if your spouse left in a huff and spent a month sleeping on a friend’s couch, but you didn’t discuss divorce until the month had passed, and neither of you intended to divorce before then, the date of separation is somewhat questionable. If, during that month, your spouse received a big bonus at work, who it belongs to is also arguable.

If you move out of the house and don’t expect any long-term reconciliation with your spouse, there may be legal consequences if the two of you go out or spend the night together just for old times’ sake. If you do briefly reconcile, you risk changing the date of separation and becoming responsible for your spouse’s financial actions during a period when you thought you were responsible only for yourself.

Once you’re separated and have made basic agreements about your joint assets and debts, you don’t have to divorce right away. Some people stay married because of insurance—and inertia can be a factor, too.

CAUTIONYou’re still free to divorce even if you’re formally separated. As long as you and your spouse agree to it, it’s fine to maintain your separation without getting a divorce for as long as you want. But once one spouse wants out, it’s that spouse’s right to proceed with a divorce. Recently, a New York couple signed a separation agreement providing that the husband couldn’t seek a divorce without the wife’s written consent for five years from the date of the agreement. Two years later, the husband did try to file for divorce, and the wife asked the court to dismiss the case. The judge refused, saying that the law only required one year of separation and the agreement was against public policy. Your local court would probably come to the same conclusion, so don’t try binding your spouse to an agreement to stay married for a certain period of time.

Legal Separation

In some (not all) states, you can get a legal separation by filing a request in family court. Being legally separated is a different legal status from being divorced or married—you’re no longer married, but you’re not divorced either, and you can’t remarry. But the court’s order granting the legal separation includes orders about property division, alimony, and child custody and support, just as a divorce would. And you can file taxes jointly.

People choose legal separation instead of divorce because of religious beliefs, a desire to keep the family together legally for the sake of children, the need for one spouse to keep the health insurance benefits that would be lost with a divorce, or simple aversion to divorcing despite the desire to live separate lives. Some people live very happily in a state of legal separation for many years. (If you’re considering a legal separation instead of divorce so that you can keep insurance benefits, check the insurance plan before making the decision. Most consider a legal separation the same as a divorce for purposes of terminating health benefits.)

Annulment

Like a divorce, an annulment ends a marriage. But unlike a divorce, when you get an annulment it’s as though you were never married, at least in some ways. Although you need to divide your property just like other divorcing couples, you are legally entitled to call yourself “single” after the annulment, rather than checking the box for “divorced” wherever that comes up.

Religion is the most common reason for choosing annulment over divorce. In particular, the Roman Catholic Church doesn’t sanction divorce or subsequent remarriage, but does allow someone whose first marriage was annulled to remarry in the church. But even if you get a religious annulment, in order to end your marital relationship in the eyes of the state you must obtain a civil annulment through the courts.

Although an annulment generally takes place very soon after the wedding, a couple may seek an annulment after they have been married for many years. In that case, the court considers all of the same issues as in a divorce, divides property, and makes decisions about support and custody. Children of a marriage that has been annulled are still legally considered “legitimate” children of the marriage.

In most places, you can get a civil annulment for one of the following reasons.

Fraud or misrepresentation. One spouse lied about something that was important to the other in getting married, like the ability to have children.

No consummation of the marriage. One spouse is physically unable to have sexual intercourse, and the other spouse didn’t know it when they got married.

Incest, bigamy, or underage party. Either the spouses are related by blood so that their marriage is illegal under the laws of the state where they married, or one of them is married to someone else, or one of them is under the age of consent and didn’t receive a parent’s approval.

Unsound mind. One or both of the spouses was impaired by alcohol or drugs at the time of the wedding or didn’t have the mental capacity to understand what was happening.

Force. One of the parties was forced into getting married.

Common Law Marriage

In some states, couples who act like they are married, hold themselves out to the world as married, and intend to be married are considered legally married. Typical indicators of a common law marriage are filing joint tax returns, referring to each other as “husband” and “wife,” and using the same last name. If you live in one of the states that allows common law marriage and you meet the criteria, then you are legally married and must get a divorce to end your marriage. If this issue concerns you, see an attorney who’s an expert in this area.

The states that allow common law marriage are:

Alabama (if created before 1/1/2017)

New Hampshire (for inheritance purposes only)

Colorado

Ohio (if created before 10/10/1990)

District of Columbia

Oklahoma

Georgia (if created before 1/1/1997)

Pennsylvania (if created before 1/1/2005)

Idaho (if created before 1/1/1996)

Rhode Island

Iowa

South Carolina

Kansas

Texas

Montana

Utah

Family Court

Every divorce case goes through some kind of court proceeding. Even if you and your spouse agree about how you will divide your property and handle parenting, finances, and support issues, a judge will still have to grant your divorce.

In most states, divorce cases—whether contested or not—are handled by a special court, called “family court,” “domestic relations court,” or “divorce court.” This doesn’t necessarily mean that there’s a separate building (though in some places there is), but just that certain judges deal only with family-related cases, such as divorce, child custody and support, and sometimes, adoption.

Having a separate court for family cases means that the judges are knowledgeable about family law and have lots of experience with different family situations. The court clerks and assistants tend to be knowledgeable as well, which will be especially important if you are representing yourself.

Residency Requirements

Before you can use a state’s court system to get divorced, you must live in the state for a certain length of time. A few states have no specified requirement; some require only six weeks; some require a one-year residency, and many more use six months as the required period.

See Chapter 3 for a list of residency requirements.

Kinds of Divorces

There’s not just one way to divorce. The differences can be in the law, like fault or no-fault, or in the way you and your spouse approach it, like uncontested, contested, or default. This section describes the different kinds of divorce in general terms. All of the issues raised here are discussed in greater detail in later chapters.

No matter how you slice it, divorce is expensive and time-consuming. The most important variable is how well you and your spouse are able to put aside your anger and grief and cooperate on the big issues of money and children. The better you are at working together to make decisions for your changing family structure, the better for your bank account and for your chances of emerging from the divorce with a decent relationship with your ex.

Kinds of Divorce at a Glance

Kind of Divorce

How It Works

Hassle and Expense

Summary

Spouses, who haven’t been married long and don’t have children or many assets or debts, file together.

Relatively simple paperwork; lawyer usually not necessary; often only one filing fee.

Default

One spouse files for divorce, the other doesn’t respond.

Relatively simple paperwork; lawyer may or may not be necessary.

Mediated

A trained, neutral mediator helps spouses work out a settlement agreement without a court fight.

Less expensive than a contested divorce; can help spouses communicate.

Collaborative

Each spouse hires a lawyer, with the goal of settling out of court using negotiation and four-way meetings.

Can take longer than mediation, but cheaper, nicer, and quicker than contested case.

Summary Divorce

In many states, an expedited divorce procedure is available to couples who haven’t been married for very long (usually five years or less), don’t own much property, don’t have children, and don’t have significant joint debts. Both spouses need to agree to the divorce, and you must file court papers jointly.

A summary (sometimes called simplified) divorce involves a lot less paperwork than other types of divorce—a few forms are often all it takes. You can probably get the forms you need from the local family court. For this reason, summary divorces are easy to do yourself, without the help of a lawyer. (There’s more about summary divorce in Chapter 3.)

Uncontested Divorce

The best choice, if you can make it happen, is an uncontested divorce. That’s one in which you and your spouse work together to agree on the terms of your divorce and file court papers cooperatively to make the divorce happen.

There will be no formal trial, and you probably won’t have to ever appear in court. Instead, you file court forms and possibly a “marital settlement agreement” that details the agreements you’ve made about how you want to divide your property and debts, what your custody arrangements for your children will be, and whether support payments will change hands. Your settlement, and your final divorce, will have to be approved by a judge, which shouldn’t be any problem. The judge will usually approve a settlement agreement unless it’s clear that the terms are completely unfair to one person or were arranged when one person was under duress.

An uncontested divorce is the least expensive kind of divorce you can get. But even it will take a bite out of your wallet. You’ll have to figure out how to prepare and file the court papers, which probably involves buying books—you’ve already got this one, but you may want others. (Your court’s website may provide free help, too—it’s worth looking. Chapter 16 has a list of court websites for each state.) You definitely will have to pay court filing fees, which will range from $100 to $1000, depending on where you live.

You’ll probably be able to handle your uncontested divorce with little or no help from a lawyer, but you may want to ask a lawyer to look over your paperwork and, perhaps, to review your settlement agreement. Many couples use a counselor or a mediator to help them come to agreement on property and custody issues. And if you or your spouse has retirement benefits through work, you might need to hire an actuary to value them or a lawyer to prepare the special court order you’ll need to distribute them.

Assuming you use professionals for these tasks, you should be able to get everything done for between $2,500 and $5,000, depending on where you live and how much local lawyers and actuaries charge. (There’s more about this in Chapters 3 and 4.)

If you and your spouse both stay on top of all the tasks you need to take care of, you should be able to finalize your divorce as soon as the waiting period (every state has one) is over. So depending on your state’s requirements, you could be finishing your divorce within a few months, or you may have everything done and just be waiting around for the date when you can file the final papers.

TIPA legal document preparer can help you with your divorce paperwork. In many states, legal document preparers, paralegals, or legal typists (different names for the same job) can help you prepare court forms for a divorce. They cannot give you legal advice, but they can direct you to helpful resources and then make sure the forms are properly filled out so that your court process goes smoothly. There’s more about this in Chapter 16.

Default Divorce

The court will grant a divorce by “default” if you file for divorce and your spouse doesn’t respond. The divorce is granted even though your spouse doesn’t participate in the court proceedings at all. A default divorce might happen, for example, if your spouse has left for parts unknown and can’t be found. (How to manage a default divorce is discussed in Chapter 3.)

Fault and No-Fault Divorce

In the old days, someone who wanted a divorce had to show that the other spouse was at fault for causing the marriage to break down. Even when both people were equally eager to get out of the marriage and the divorce was uncontested, they had to decide which of them would take the legal blame and decide which of the fault grounds they would use in asking the judge to grant the divorce. Adultery was the most popular choice, but abuse, abandonment, extreme cruelty (inflicting unnecessary emotional or physical suffering on the other spouse), and the physical inability to engage in sexual intercourse that wasn’t disclosed before marriage also made the list.

Now, every state offers the option of no-fault divorce—and in many states, no-fault is the only option. In a no-fault divorce, instead of proving that one spouse is to blame, you merely tell the court that you and your spouse have “irreconcilable differences” or have suffered an “irremediable breakdown” of your relationship. In some states, however, in order to get a no-fault divorce you must also have lived apart for a specified period of time.

Covenant Marriage and Divorce

If you entered into a “covenant marriage” in Arizona, Arkansas, or Louisiana, you must request a divorce on fault grounds—you may not use no-fault divorce procedures. You’re required to engage in marital counseling before you can file for divorce, and the waiting period before your divorce is final may be longer than that for a noncovenant marriage. You’ll definitely need a lawyer’s help, especially if you and your spouse disagree about getting a divorce.

Carryovers of the old fault system do remain. In some states, you have a choice of using fault or no-fault grounds for divorce. Even if you choose no-fault, some of these states’ courts still use fault as a factor in dividing property and determining custody and support. This basically means that one spouse may accuse the other of misconduct and argue that it should affect support awards or the division of property.

It’s unlikely you would choose to file for divorce on any of the fault grounds if your divorce is uncontested. The only reasons you might choose a fault divorce are if you don’t want to wait out the separation period, or if you anticipate a major fight over property or support. However, if you do intend to argue that fault should factor into property division or support, make sure you use the right forms and check the right boxes when you file your initial court papers. You may need a lawyer’s help to be sure you protect your rights.

There’s a table in Chapter 5 that lists whether states are pure no-fault states, (where you can’t get a fault divorce), or allow fault divorce. It also shows the length of separation required before a no-fault divorce is granted. Chapters 9 through 11 contain more information about how fault affects property and support, and Chapter 5 addresses the issue of fault in a contested divorce.

Mediated Divorce

In divorce mediation, a neutral third party, called a mediator, sits down with you and your spouse to try to help you resolve all of the issues in your divorce. The mediator doesn’t make any decisions; that’s up to you and your spouse. Instead, the mediator helps you organize information and communicate with each other until you can come to an agreement.

Mediation is much less expensive than going to trial, but more important is the fact that mediation is a wonderful way to preserve and even improve your relationship with your spouse. Working with a mediator to make decisions that work for everyone is a powerful, and often very positive, process.

Mediators charge anywhere from $100 to $500 or more per hour, and if you have a lot of issues to resolve, the mediation could take as many as five or six sessions. Assuming an average rate of $250 per hour and assuming each mediation session is two hours long, you’re talking between $1,600 and $3,600. And in a mediated divorce, just as in every other divorce, you may need the help of actuaries, appraisers, and other professionals to value your assets. If you have children, you might also consider working with a parenting counselor who can help you create a parenting plan.

Many couples who are mediating also use “consulting attorneys” to coach each of them through the process and prepare or review the settlement agreement at the end. All in all, you might expect to pay between $2,000 and $6,000 for your share of a mediated divorce. This is far less expensive than a contested divorce that settles before trial, and much, much cheaper than a case that goes all the way to trial. (There’s a lot more about mediation in Chapter 4.)

Collaborative Divorce

Just about everyone agrees that battling lawyers escalate a divorcing couple’s troubles, to no one’s benefit. In response, a new process has developed, called “collaborative divorce.” It involves working with lawyers, but the lawyers play a different role from the stereotypical bulldog litigator.

You and your spouse each hire lawyers who are trained to work collaboratively and who agree to try to help you settle your case. Each of you has a lawyer who is on your side, but much of the work is done in cooperation. You and your spouse agree to disclose all the information that’s necessary for fair negotiations, and to meet with each other and with both lawyers to discuss settlement. You all agree that if your divorce doesn’t settle through the collaborative process, your original attorneys will withdraw and you’ll hire different attorneys to take your case to trial. The financial disincentive for this outcome should be obvious—you’d have to pay a second lawyer to get up to speed on your case and to do the trial work.

Often other professionals are involved in the process. Your team may include coaches for both you and your spouse—mental health professionals trained to work with spouses in divorce. A neutral financial analyst can help you gather the necessary documents to assess and distribute your property. All of the people assisting with your divorce stay in touch with each other and work together to help you come up with an appropriate resolution.

A collaborative process can be much faster, and much less painful, than a contested divorce. It’s not for everyone, but it’s a good middle ground between face-to-face mediation and all-out litigation. It offers the protection and expertise of an attorney combined with an explicit commitment to resolving things without an expensive court fight.

The downside, of course, is the potential cost if the collaborative process doesn’t succeed. There’s a possibility that you or your spouse might agree to something just to avoid the extra cost of going to trial. Before you agree to a collaborative process, make sure that you are prepared—both emotionally and financially—to decide how much compromise is too much.

You shouldn’t choose a collaborative divorce just because you think it will be quick, easy, and inexpensive. It may be all of those things, but the commitment you make in a collaborative process is to doing what it takes to reach a solution that truly takes the needs of every person in the family into account. This can take just as long or longer than a divorce in which you hire attorneys to negotiate for you (though usually not as long as a court divorce). That means it can be expensive, as well.

If you go for a collaborative divorce, expect to pay at least $5,000 to $15,000 for your share, and possibly much more if you have multiple meetings or you live in an area where professional fees are on the high end. Between scheduling all the necessary meetings, gathering information, and getting lawyers to prepare paperwork, your divorce may take a year or more. Of course, if you easily reach an agreement and everyone is very efficient, you may be able to finalize things as soon as the waiting period in your state is over, and the cost may be lower.

RESOURCEGet more information. For more information about collaborative divorce, check out Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine E. Stoner (Nolo), Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on With Your Life, by Pauline Tesler and Peggy Thompson (HarperCollins) or The Collaborative Way to Divorce, by Stuart Webb and Ron Ousky (Hudson Street Press).

Arbitration or Private Judging

In arbitration, you and your spouse agree that you’ll hire a private judge or an arbitrator, to make the same decisions that a judge working for the court system could make, and you agree to honor the arbitrator’s decisions. Arbitration or private judging has some of the same advantages as mediation does, including speed, efficiency, privacy, cost-effectiveness, and informality.

Arbitration has been used for many years in other kinds of lawsuits, and it’s starting to gain favor among divorce lawyers as a good alternative to a court trial. The arbitrator or private judge is usually a lawyer or a retired judge, who you pay hourly. Your lawyer and your spouse’s lawyer will probably be able to agree on someone who’d be appropriate for your case. The court system still retains ultimate control over your divorce, and the decision to hire a private judge or arbitrator must be approved by the judge who is overseeing your case or by the presiding judge of the family court.

Just as in a trial, each side prepares arguments and evidence and presents them to the arbitrator or private judge, who then makes decisions. However, the presentation of evidence is usually less formal than in a courtroom. You’re likely to be able to schedule a hearing much more quickly than you would get a case to trial, so speed is a major advantage. It’s also private, unlike a trial, which is open to the public. (Your court records will still be public if you use arbitration, though.)

Cost is another upside; although it’s still expensive, using an arbitrator or private judge won’t cost as much as a trial. That’s because it shouldn’t take quite as long for your lawyer to prepare for the hearing, and the trial itself may be shorter because the arbitrator or private judge won’t be as strict about evidence as a judge would be.

The decision of the arbitrator or private judge generally is binding, which means if you don’t like it, you can’t ask for a do-over and go to court for a second chance. You also can’t appeal the decision to a higher court, so you are stuck with the decision. Because of the inherent unpredictability of divorce cases, some people don’t like that idea—though some might appreciate the certainty that a private process offers.

CAUTIONArbitration and private judges aren’t available everywhere. A few states don’t allow divorce cases to be processed outside of the regular court system. Check with your lawyer, if you have one, or with your local court clerk.

Contested Divorce

If you and your spouse argue so much over property or child custody that you can’t come to an agreement, and instead take these issues to the judge to decide, you have what’s called a contested divorce. The judge and court clerks will be the main players in your divorce case. (There are no juries in divorce trials, except in Texas and Georgia—and in Georgia, the jury can’t decide custody or visitation, only financial issues. In a minority of other states, you can ask for a jury trial in some circumstances, but this is very unusual.) Most divorce trials are not long, drawn-out affairs as you might imagine. Many take a day or two, or even just a morning.

The trial itself may be short, but the entire process is long and hard. It will take a huge emotional toll on you, your spouse, and certainly your kids, and also cost you in dollars and cents. A contested divorce, even one that ends in a settlement rather than a trial, can cost each spouse many tens of thousands of dollars. Assuming each side’s lawyer charges $250 per hour, and assuming an ordinary amount of information gathering and pretrial court proceedings, an average divorce might run each of you $30,000—and that figure could easily be much higher with a few added complexities or more expensive hourly rates.

Which brings us back to our initial advice: Take the high road whenever you can. The rewards aren’t only monetary, but choosing compromise will definitely improve your bottom line. And less stress about money makes it easier to work out other issues, now and later. It will also expedite things—a contested divorce, especially if you are fighting over custody, can take years to resolve.

Divorce: Typical Tabs

$30,000 or more per spouse

$5,000 to $15,000 per spouse

$2,000 to $6,000 per spouse

$1,500 to $3,000 total

Uncontested

Mediated

Collaborative

Contested

Marriage (and Divorce) for Same-Sex Couples

In June 2015, the United States Supreme Court ruled in the Obergefell case that same-sex couples must be allowed to marry in every state and that to deny this right to any same-sex couple is unconstitutional. This landmark decision changed the legal landscape for same-sex partners everywhere, and in every realm—marriage, parenting, employment benefits, Social Security, veterans’ rights, retirement, and more. And because of the 2013 decisions in Windsor and Perry, all of these rights will be recognized on both the state and federal levels: Same-sex married couples now have the same rights under federal law that opposite-sex couples have always enjoyed. These include the right to transfer property at divorce without tax consequences and the ability to roll over tax-deferred retirement funds, among other things. (Some of these rules are in question for everyone after the passage of the tax bill in late 2017—those questions are addressed in Chapter 10.)

Although this monumental shift in marriage equality has paved the way for same-sex couples to marry in all states, partners in marriage-equivalent relationships, such as domestic partnerships and civil unions in California, Colorado, Nevada, and Oregon don’t enjoy the same federal rights as married couples, nor is there any reason to believe that will change any time soon. If you’re registered as domestic partners or part of a civil union, but aren’t married, you may want to consider going ahead with a legal marriage, which will protect your relationship while you’re together and provide important advantages should you part ways. Some couples even decide to marry for the express purpose of making their divorce more tax-efficient, but you should see an attorney before going this route.

Another critical note: It’s still very important for same-sex parents in every state to complete stepparent adoptions or obtain parentage judgments to protect the rights of nonbiological and nonlegal parents. In nearly every state, there is a marital presumption that establishes parentage in a nonbiological parent, and the federal government will recognize parentage under the Windsor decision. However, parentage presumptions are not the same everywhere, and in some states, the fact that a nonbiological parent isn’t genetically related to a child can cause that state not to recognize a presumed parent. An adoption or parentage order can prevent this—court judgments are entitled to recognition under the Full Faith and Credit Clause of the United States Constitution. Make sure you take steps to protect your family by seeking a judgment. You can obtain a parentage judgment as part of your divorce in some states, and if you can, you should.

If you and your partner are in agreement—or can reach agreement through mediation—about how to divide your property and share time with your kids, you may be able to use one of the do-it-yourself methods described in Chapter 3, but you should consult an experienced lawyer before going forward, to make sure you’re not missing anything.

RESOURCETo learn more, see A Legal Guide for Lesbian and Gay Couples, by Frederick Hertz and Emily Doskow (Nolo) and Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz with Emily Doskow (Nolo).

Property, Custody, and Support

Every divorcing couple must consider how to distribute property and debts, and whether one spouse will pay spousal support to the other. If you have kids, you’ll also need to make decisions about parenting time and support. You and your spouse will either need to work out these three big issues or turn them over to a judge to decide.

Divvying Up Property

“Marital property” is the collection of assets you and your spouse have gathered during your marriage, including money, real estate, investments, pension plans, and so on. Marital debts are obligations you took on together during your married life. Both the property and the debts belong to both of you, and part of the divorce process will be to divide them up between you.

Assets or debts that either of you had before your marriage, or that you acquired after the permanent separation, are called separate property or debts. Generally, each of you will keep your separate property and be responsible for your separate debts, but in some states separate property can be divided at divorce.

If you and your spouse can agree on how to distribute your property, the court will simply approve your agreement. If you can’t agree, the court will divide things for you. A few states use “community property” rules, and divide marital property equally. The rest use a system of “equitable distribution,” to divide property in a way that the court thinks is fair, but that isn’t always equal. Chapters 9 and 10 explain how states divide property and discuss the decisions you’ll need to make about your assets and debts.

What Happens to the Children?

Divorce is stressful for everyone, but when you have children, the stakes are higher, and you are responsible for protecting these most vulnerable participants in the divorce process. There are three entire chapters about kids later in the book.

You and your spouse will need to create a parenting plan, a document that will include your decisions about whether you’ll share custody of your children equally, or whether one parent will be the primary custodial parent. If you can’t agree and create the plan yourself, the judge will decide for you. Custody means both the right to have a child live with you (physical custody) and the right to make decisions about the child’s welfare and education (legal custody).

A parent who doesn’t have physical custody of the kids is usually given visitation rights. If one parent has both legal and physical custody and the other has fairly limited visitation, the primary custodial parent has “sole custody.” “Joint custody,” which is more common, means that both parents share physical custody, legal custody, or both.

Even if you and your spouse are never going to see eye to eye about money matters, you should try very hard to come to an agreement about custody and parenting arrangements. A custody fight will harm your children more than any other kind of dispute that might come up in the divorce process. Do everything you can to avoid it.

At the beginning of your divorce process, you’ll need to come up with a temporary agreement about how you will share time with your kids. You should do that as quickly as you can, to ease your children’s insecurity. Whatever you decide, write it down and make sure you note that the arrangement is temporary, so that it’s clear you’re not agreeing to something for the long haul. It may take a while to figure out what long-term arrangement will work best.

Chapter 13 contains a sample parenting agreement; you can take parts of it and use them to prepare a temporary agreement when you first split up. See Chapters 6 and 7 for more about custody, including how courts decide custody questions and how to prepare a time-sharing plan.

Spousal and Child Support

If you and your spouse have children, chances are that one of you will pay child support to the other. When the children spend more time with one parent than the other, or if one parent earns more money, the court will award child support to make sure that the kids are always taken care of.

In some divorces, courts award spousal support, also called alimony or maintenance, to one party. A support award is especially likely after a long marriage, where one spouse’s earnings are much higher than the other’s, or if one spouse gave up career plans to support the other spouse or care for kids. Chapter 8 addresses child support issues, and Chapter 11 has more about spousal support. Chapter 12 addresses child and spousal support for military spouses.

Getting Help From Experts

As you can see, there are a lot of decisions to make in a divorce. You and your spouse can make these decisions yourselves, rather than having a judge make them for you—and you should make every effort to do so. At such a painful time, it’s difficult to just sit down with your spouse and figure out how you are going to remake your family structure, finances, and living situations. But that doesn’t mean you have to lose control of the decisions and slide into an expensive, acrimonious, and ugly divorce. You can get help. Chapter 16 has a lot more about how to go about getting the information and expert help you will need to complete your divorce.

Forms

This Book Comes With a Website

Nolo’s award-winning website has a page dedicated just to this book, where you can:

DOWNLOAD FORMS - All forms in this book are accessible online. After purchase, you can find a link to the URL in Appendix A.

KEEP UP TO DATE - When there are important changes to the information in this book, we will post updates

And that’s not all. Nolo.com contains thousands of articles on everyday legal and business issues, plus a plain-English law dictionary, all written by Nolo experts and available for free. You’ll also find more useful books, software, online services, and downloadable forms.